The Education and Children’s Services Act 2019 (Act) was assented to on 8 August 2019. The Government is required to make a proclamation for the Act to commence or if it doesn’t do so the Act will automatically commence on 8 August 2021. The Act will repeal the Education Act 1972 (SA) and the Children’s Services Act 1985 (SA), and replace it with a contemporary framework that aims to deliver high-quality children's services and compulsory education in South Australia. While many of the Act’s provisions are only applicable to government schools, there are also implications for non-government schools. The most notable of these is the prohibition on corporal punishment, the new protections for teachers and staff from offensive behaviour and language, and updated provisions relating to information sharing.
One of the Act’s most significant features for non-government schools is its definitive prohibition on corporal punishment. The practice of intentionally inflicting physical pain on students in order to correct or punish their behaviour has been banned in South Australia’s government schools since 1991. There are also offences, under the Education and Care Services National Law, that prohibit the use of corporal punishment in government and non-government preschools. However, up until the commencement of this Act, corporal punishment is technically legal in South Australia’s non-government schools. This makes South Australia one of only two jurisdictions in Australia that (until the Act commences) still allow corporal punishment in non-government schools, the other being Queensland.
According to the Honourable Connie Bonaros from the SA-BEST Party, the last official report of corporal punishment in South Australia came from one of the state’s non-government schools in 2014. This demonstrates that, while corporal punishment may be rare, there is still a need for legislative clarity and an unequivocal ban on the practice. Therefore, the Act is fulfilling an important and arguably long-overdue need for clarity on corporal punishment in non-government schools.
Protections for Teachers and Staff
The Act also introduces provisions designed to protect teachers and other staff acting in the course of their duties from offensive behaviour and abusive, threatening or insulting language. These provisions have a broad operation, applying to both government and non-government schools. They are also broad in the sense that the offensive behaviour or language does not have to occur on school premises for it to be within the ambit of the Act. For example, the provisions would extend to a parent abusing a staff member over the telephone, so long as that staff member is “acting in the course of their duties”. Notably, these offences cannot be committed by a person employed at the school or by a student at the school. It is therefore most likely to affect parents and guardians of students at the school.
These new offences are also accompanied by provisions that give principals the power to deal with persons who behave in an offensive manner on school premises. Most notably, where such behaviour has occurred, the principal is empowered to bar the person from school premises.
The Act also implements changes to the information sharing that is permitted between certain relevant persons and bodies. The information sharing provisions are entirely new to this Act – none of them were included in either the Education Act 1972 (SA) or the Children’s Services Act 1985 (SA). They are however in addition to the information sharing provisions in the Children and Young Persons (Safety) Act 2017 (SA).
Under the new provisions, the chief executive will be able to request information about a specific child from schools, both government and non-government, that the chief executive reasonably requires for the purposes of the Act. Furthermore, the provisions enable the sharing of information between schools – again, government and non-government – where the information will assist the recipient to perform official functions relating to the education, health, safety, welfare and wellbeing of a child. For example, the principal of a school at which a child is to be enrolled can request a report on the child from the principal of the child’s previous school. This report could contain information ranging from the child’s academic progress to their safety and wellbeing.
As the accompanying regulations still need to finalised, the Government expects that the Act will come into force at the start of the 2020 school year. This gives schools time to become familiar with the new provisions and to take any necessary action. For instance, schools may like to draw the attention of the wider school community – particularly parents and guardians –to the new offences relating to offensive behaviour and language.